Porco trial testimony

Published 1:00 am, Friday, July 21, 2006

1 Colloquy2015 2 SUPERIOR COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE 3 - - - - - - - - - - - - - - - - - - - - -x In the Matter Of: 4 THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, 5 - against - #DA848-05 6 CHRISTOPHER PORCO, 7 Defendant. - - - - - - - - - - - - - - - - - - - - x 8 TRIAL 9 July 20, 2006 Orange County Government Center 10 Goshen, New York 10924 11 B E F O R E : HON. JEFFREY G. BERRY 12 Judge of the County Court 13 A P P E A R A N C E S : P. DAVID SOARES, ESQ. 14 District Attorney for the County of Albany 6 Lodge Street, 4th Floor 15 Albany, New York 12207 BY: MICHAEL P. MC DERMOTT, ESQ., Of Counsel 16 DAVID M. ROSSI, ESQ., Of Counsel 17 KINDLON & SHANKS, ESQS. Attorney for the Defendant 18 74 Chapel Street Albany, New York 12207 19 BY: LAURIE SHANKS, ESQ. TERENCE KINDLON, ESQ. 20 A L S O P R E S E N T : 21 Christopher Porco, Defendant Susan L. Valle, NY Prosecutors Training Institute 22 Sean Smith, NY Prosecutors Training Institute 23 LUCILLE D. KESTER, CSR NEIL BOSTOCK, RPR 24 ROBERT CUMMINGS, JR.,RPR Senior Court Reporters 25 . 1 Colloquy2016 2 3 4 MR. KINDLON: Judge -- 5 MS. SHANKS: May we approach? 6 THE COURT: Yes. 7(Discussion off the record.) 8 THE COURT: Ladies and gentlemen, I'm going 9 to need to speak to the attorneys. 10 Please keep an open mind and form no opinion 11 or conclusion as to any fact in this case nor as 12 to the guilt or non-guilt of the defendants. 13(Jury excused.) 14 THE COURT: Mr. McDermott, you want to make 15 your offer of proof? 16 MR. MC DERMOTT: Yes, Judge, the door is 17 still opened. 18 Your Honor, Daniel Kidera as he testified 19 to, is a friend of longstanding of Christopher 20 Porco. 21 Back in the summer of 2004, he was working 22 for Northwestern Mutual Financial Group. 23 He had a number of conversations with 24 Christopher Porco about Christopher Porco's 25 representation to him that he would be gifted . 1 Colloquy2017 2 2.8 million dollars by his grandmother upon his 3 21st birthday and that he wanted professional 4 financial advice regarding how best to invest 5 it. 6 Then Mr. Kidera put Mr. Porco in touch with 7 Mr. Slattery who is an executive of that 8 particular organization. 9 We discussed this yesterday and it was the 10 Court's ruling we would not get into those 11 matters. 12 The purpose for calling Mr. Kidera to the 13 stand today is to have him recount a 14 conversation that he had with Mr. Porco 15 regarding Mr. Porco's knowledge of the wills and 16 the contents of the wills of his two parents. 17 The only testimony I plan to elicit was 18 simply that, with no additional contextural 19 information, this conversation was had in the 20 conversation in the context of the 2.8 million 21 dollars that was supposed to be inherited from 22 his mother. 23 THE COURT: His grandmother. 24 MR. MC DERMOTT: Yes, his grandmother. 25 THE COURT: Mr. Kindlon. . 1 Colloquy2018 2 MR. KINDLON: Thank you, Judge. 3 I think we're about to write another bar 4 exam here, Your Honor. 5 Here's the problem. When you have 6 exceptions to the hearsay evidence rule, the 7 reasons for the exceptions to the hearsay 8 evidence rule are because the circumstances 9 represented by those exceptions are based upon 10 centuries of given experience to be the kinds of 11 thing which insure the reliability of the 12 statement. 13 That's why we make an exception to the 14 hearsay evidence rule, because the statement 15 that then is shared with the jury is based on 16 human experience and scholarship and all this 17 litigation we do is most likely to be a true 18 statement even though we really can't cross 19 examine it effectively. 20 Now, here the foundation for the statement 21 which the prosecution wants to introduce to this 22 jury, the foundation for it is clearly 23 unequivocally without question a lie. It is not 24 true. 25 Under those circumstances -- . 1 Colloquy2019 2 THE COURT: I ruled yesterday that the 2.8 3 million inheritance from the grandmother was 4 quite obviously not true. 5 MR. KINDLON: Right. 6 THE COURT: But now you're saying the 7 knowledge that they want to elicit he's observed 8 his parents will; he knows he's a beneficiary 9 under that. Now you're jumping and saying, 10 well, that too is a lie? 11 MR. KINDLON: Yes, I am exactly and here's 12 why -- and here's why, because it is entirely 13 within the context of the discussion of that 14 imaginary 2.8 million dollars that the assertion 15 allegedly is made by Christopher that he knows 16 the contents of his parents' wills. 17 I think we have established here pretty 18 clearly that Christopher Porco is better off 19 with his parents alive, better off financially 20 with his parents alive, than he is with his 21 parents dead. 22 Here, if you permit the introduction of this 23 assertion into the record of this case, the 24 exact opposite of what we know to be the truth 25 is the impression given to the jury and then . 1 Colloquy2020 2 under those circumstances we'll have no 3 alternative, Your Honor, other than to engage in 4 a course of advocacy here, which is going to 5 involve our proving to this jury that 6 Christopher is and would be better off with his 7 parents alive than he would be with them dead. 8 The net effect of that is that we're going 9 to still be in this courtroom when it's snowing 10 out. 11 The fact of the matter is that clearly and 12 without question the purpose of the hearsay 13 evidence rule is to get reliable information 14 before the jury. 15 The only effect that this kind of 16 information would have is to give unreliable 17 evidence to the jury which would be profoundly 18 prejudicial. 19 Under those circumstances, you know, the 20 prejudice would clearly obliterate the probative 21 value. 22 We never heard about this statement before 23 either. This is the first time this has come up 24 here this morning, not withstanding the fact we 25 have five or six pages of verbiage single space . 1 Colloquy2021 2 typed prepared by the Bethlehem police 3 concerning what you've already determined to be 4 inadmissible information. 5 Can I just say one more thing? 6 THE COURT: Yes. 7 MR. KINDLON: Since this definition has been 8 so frequently throughout this trial discussed, I 9 would like to assert that hearsay is a statement 10 other than one made by the declarent while 11 testifying at the trial or hearing offered in 12 evidence to prove the truth of the matter 13 asserted. 14 It defies logic to think that we would 15 derive truth from a statement which is obviously 16 founded on a falsehood. It's logically 17 impossible 18 MR. MC DERMOTT: Your Honor, I don't think 19 Mr. Porco can insulate himself from any 20 statements made to others by claiming that he is 21 a pathological liar and, therefore, nothing he 22 ever says is true and the jury can't hear it. 23 I think that there are two situations about 24 2.8 million dollars inheritance from the mother 25 which is untrue, is not necessarily proof that; . 1 Colloquy2022 2 the second component that he knew the contents 3 of his parents' will is untrue. 4 Obviously, what he stated that he stood to 5 inherit was a correct statement of the contents 6 of the will and it directly goes to issues in 7 this case. 8 The people respectfully request to have Mr. 9 Kidera testify just to that and to none of the 10 precluded matters that the Court has already 11 ruled on. 12 MR. KINDLON: The other problem we have, of 13 course, is the remoteness in time, Your Honor. 14 This is something that happened well before 15 the date upon which the murder of Peter Porco 16 occurred. 17 THE COURT: May I see the exhibit? May I 18 see exhibits 404 and 405, please? 19 Let the record reflect that having heard the 20 arguments of counsel, I feel that the people are 21 within their right to elicit this testimony. 22 They're limited in eliciting the testimony 23 to what you placed on the record as to the fact 24 that he's observed his parents wills; he knows 25 the contents of the same or words to that . 1 Colloquy2023 2 effect. 3 We're not going to go into anything further. 4 We're not going to go into the two million 5 dollars and those other items. 6 Quite obviously, I don't disagree with Mr. 7 McDermott in your argument that while the one 8 may have been a lie or misrepresentation or 9 falsehood as to the two million dollars, it 10 doesn't stand for us to continue on to say and, 11 also, therefore, everything else he said he knew 12 was also a lie and misrepresentation. 13 As such, you may elicit that information. 14 MR. MC DERMOTT: Your Honor, if Mr. Kidera 15 comes back before the jury returns or if you 16 want me to go through it now, I've already 17 cautioned Mr. Kidera not to mention anything 18 about the context. 19 One of the things he did tell me was that 20 Christopher Porco knew where the will was kept 21 in the house. 22 At the bench you said you didn't want that. 23 I need to caution him as to that part of his 24 answer. 25 You want me to to do that or you want me to . 1 Colloquy2024 2 do that before the jury comes back? 3 THE COURT: You can clue him in when he 4 takes the witness stand. 5 Kindly bring him back out. Just whisper 6 we're not going to go into that aspect. 7 MR. KINDLON: One more thing here. 8 I submit that this makes it impossible for 9 the defense to have a fair trial, because of the 10 obvious restrictions upon cross examination. 11 The only way we can possibly cross examine 12 this witness would be to demonstrate the 13 prejudicial information to the jury. 14 That's why I think it's necessary for the 15 court to consider, and let's for the sake 16 argument assume we have a mixture here of 17 hearsay and non-hearsay information, under those 18 circumstances the court -- 19 THE COURT: Or truthful and untruthful 20 information. 21 MR. KINDLON: Well -- 22 THE COURT: I think that's what you meant to 23 say. 24 MR. KINDLON: Well, I think they're 25 inextricably intertwined, truthful, untruthful, . 1 Colloquy2025 2 prejudicial, probative, it's really a very 3 complex mixture of circumstances and 4 information. 5 I would respectfully submit that the court 6 necessarily has to very carefully balance my 7 client's right to a fair trial, the prejudicial 8 impact of this information against its probative 9 value on the ultimate issues in the case. 10 Once again, I would submit that this has the 11 affect of shifting the burden from the 12 prosecution to the defense. 13 Under the circumstances it does defeat the 14 right to a fair trial. 15 THE COURT: Well, that's your opinion, sir. 16 Let's proceed. 17 MR. KINDLON: That's my position. 18 THE COURT: I know and I understand that. 19 Quite obviously, there does come a time in 20 many trials when evidence starts to be 21 accumulated that's presented by the prosecution 22 that does cause the defense to begin to believe 23 that maybe they might have to go out and get 24 some information to refute what the people have 25 proven. . 1 Colloquy2026 2 So, it's not shifting any burden. It gives 3 you the opportunity to observe their evidence 4 and then decide whether you want to present any 5 evidence or not. 6 MR. KINDLON: Well, Your Honor, I think it 7 would be pointless for me to argue, but under 8 the circumstances, I guess the record is 9 complete. 10 THE COURT: I agree. 11 MR. MC DERMOTT: May I approach the witness? 12(Discussion off the record.) 13 THE COURT: Just take him back for one 14 second. 15 You still have the ability to cross examine 16 this witness. You are the one who's come to the 17 conclusion that you're going to elicit items I 18 already said weren't coming in based upon how 19 you want to do it. There are many ways of doing 20 it. 21 MS. SHANKS: Your Honor, then I would ask 22 for a direction from the court, because my 23 questioning on cross examination would be, you 24 know, did he have any idea -- did they have a 25 discussion at that point about, for instance, . 1 Colloquy2027 2 about what the worth of the Brockley home was or 3 how much the indebtedness was? Did he know the 4 Porcos had almost no money in their account? 5 Is that going to open the door to him saying 6 that the grandmother had 2.8 million dollars? I 7 don't believe it does, but I certainly don't 8 want to walk into that minefield if the court 9 would then rule it opened the door. 10 I would like to know can I ask him those 11 questions? 12 THE COURT: If you're vague in what you're 13 talking about, you probably can ask him a 14 number. 15 If you're going to get specific, the people 16 might have that opportunity. 17 MS. SHANKS: Thank you. 18(Jury entered.) 19 THE COURT: Please be seated, everyone. 20 Please keep an open mind and form no opinion or 21 conclusion as to any fact in this case nor as to 22 the guilt or non-guilt of the defendants. 23 You may proceed. 24 THE COURT: Mr. Kidera, sir, I'll remind 25 you, you are still under oath. . 1 Colloquy2028 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25